The NCRI amends the Nebraska Constitution to prohibit the state from discriminating on the basis of race. Supporters describe the impact of the measure as banning government-sponsored racial preferences and opponents describe it as being anti-affirmative action.

An effort to nullify the initiative through the courts came up short on January 22, 2009 when Lancaster Circuit Court judge Karen Flowers ruled against a lawsuit challenging the legitimacy of the signatures on the qualifying petitions.[1][2]

Aftermath

A man who falsely swore to signatures collected for the ballot initiative was sentenced to 160 days in jail. Mark Brown was charged with three felony counts of false swearing to a circulator's affadavit, according to reports. Brown, from Tulsa, Oklahoma was paid on a per signature basis. However, suspicion arose when the signatures collected had an unusual pattern, and then were found to be false signatures, believed to have been written in by Brown.[3]

Supporters

Republican Presidential candidate John McCain endorsed the Arizona Civil Rights Initiative, a cousin of the Nebraska measure.[5] Presumably, McCain's support would follow for the nearly identical measures to be voted on in Nebraska and Colorado as well.

"I support it," McCain said when asked about the Arizona Civil Rights Initiative. "I do not believe in quotas... I have not seen the details of some of these proposals. But I’ve always opposed quotas."[5]

At its annual statewide convention, the Nebraska Republican Party voted to endorse the NCRI.[6][7]

Gerard Harbison, a professor at the University of Nebraska-Lincoln is collecting signatures for the initiative as a volunteer and writing a blog about his experiences: "I had a good time collecting signatures today. I got a picture of my blockers; I figured if they get nasty, the cops can use it for ID. But they seemed harmless enough. They were telling lies, of course, and they knew they were telling lies. That's a shame. There may be causes worth lying for, but lying to sustain inequality is just bad karma."[8]

Arguments in favor

The main arguments made in favor of passing the NCRI were:

The racial preferences that would be ended by NCRI have committed the same kinds of discrimination they were designed to prevent.[9]

"Equality Before the Law" is Nebraska's state motto. But Nebraska has ignored this ideal and developed a system of quasi-quotas, set-asides and speciality scholarships that pick winners and losers based on skin color and gender.[10]

"Voting yes on Initiative 424 will restore fairness in how people are treated in public contracting, public employment and public education."

Proponents of the initiative spent $608,512.83 during the qualification stage of the campaign.[18]

Opponents

Nebraskans United is opposing the initiative. The group describes itself as a coalition of concerned business groups, educational institutions, faith groups, grassroots organizations, and individual citizens devoted to "protecting Nebraska's Constitution from unnecessary outside attacks" and committed to promoting "equality, fairness, and diversity in the state of Nebraska." On the website of the organization, they state "We are working to prevent our well financed out of state opposition from gathering enough signatures to place this measure on Nebraska’s ballot this fall."

No other initiatives circulating in Nebraska in 2008 were able to collect enough signatures to make the ballot, so if the group succeeds in keeping the NCRI off the fall ballot, for the first time in more than twenty years, Nebraska residents will be unable to vote on an initiative of any kind on their fall ballot.

Opposing arguments

Notable arguments in opposition to the measure included:

This measure will undercut Nebraska's ability to develop a diverse workforce.

Eliminates scholarships to Nebraska's community and state colleges, as well as the university.

Diminishes the ability of state and community colleges to attract a diverse student body and faculty.

Increases racial divisiveness. According to Dr. Deirdre Bowen, a professor at Seattle University School of Law, the results of her national study show that in states where minority students were admitted to higher education without “racial preferences” these students are — twice as likely to experience overt racism, almost twice as likely to have their qualifications questioned and feel pressure to succeed based on race, and more likely to feel that faculty have lower expectations of them — compared to students who attend colleges and universities in states that allow race based admissions.[20]

Donors to opposition

As of October 6, Nebraskans United had raised $392,397. Large donors to the campaign against NCRI include:[21][22][23]

Matthew Hansen, a reporter for the Omaha World Herald wrote on October 16, "Nebraskans United is also now accepting donations from out-of-state groups even though its leaders have repeatedly criticized the Nebraska Civil Rights Initiative for being funded by out-of-state interests."[24]

Opponents object to ballot title

Nebraskans United filed a complaint in Lancaster County district court on July 29 objecting to the ballot title that Nebraska's attorney general Jon Bruning has written to appear on the November ballot describing the measure. Nebraskans United spokesman David Kramer says the language Bruning proposes is "unclear and misleading."

Bruning's ballot summary says that what will happen if the NCRI passes is the Nebraska Constitution will be amended "to provide that the state, and any public institution of higher education, political subdivision or government institution shall not discriminate against, or grant preferential treatment to, individuals or groups based upon race, sex, color, ethnicity or national origin in operating public employment, public education or public contracting."

Nebraskans United wants the language to say that the NCRI would "eliminate current state and local programs designed to improve opportunities for and eliminate discrimination against women and minorities in public education, employment and contracting."

Marc Schniederjans, a local leader of the Nebraska Civil Rights Initiative, says that the language Brunig proposes is "as clear as rain" and that what the opposition is doing by filing this complaint is "a standard strategy of those opposing such measures."[26]

August 29, 2008:
A Lincoln judge ruled that the wording of a state ballot measure seeking to ban most forms of affirmative action is mostly acceptable and can largely be used on Nebraska's November ballot.
The ruling seemingly clears the way for the Nebraska Civil Rights Initiative to appear on the ballot in the language preferred by its supporters.[27]

Polls

Quinnipiac University did a poll of 1000 likely voters in Colorado in September to assess their support for the Colorado Civil Rights Initiative (2008), which is extremely similar to NCRI, finding that 63% of likely voters were in favor. Nebraskans United downplayed the results.[28]

Path to the ballot

On July 3, 2008, supporters of the initiative turned in about 167,000 signatures to the Nebraska Secretary of State in order to qualify for the November 4 ballot. Alone among the states with initiative & referendum, Nebraska's signature requirements make it impossible to know exactly how many signatures will be required to qualify a measure for the ballot until the day they are turned in. However, the number of required signatures appears to be about 114,000, which means that initiative sponsors turned in about 50,000 more signatures than required. Nebraska petitions are also subject to a distribution requirement that mandates collecting signatures from 5% of registered voters in each of 38 counties. The NCRI group says it reached the 5% level in all 93 Nebraska counties[29][30][31]

Petition drive management

The "identity theft" ad

Nebraskans United started airing two ads on June 13, 2008, that initiative supports are describing as eleventh-hour fear tactics to scare people away from signing the petition, as circulators near their July 4 deadline.[32]

One of the ads suggests voters could fall victim to identity theft or other crimes if they provide their personal information for the petitions. The other says a ban on affirmative action would jeopardize services for women, such as domestic violence assistance or breast cancer screenings.[32] Doug Tietz, executive director of the Nebraska Civil Rights Initiative, said both ads are inaccurate, and that the only thing truthful is that scholarships couldn’t be targeted toward just women—or minorities, for that matter.[32]

Petition charges

David Kramer, campaign director of Nebraskans United, showed video footage on June 25, 2008, that appears to show circulators leaving petitions unattended and filling in information for signers. Both are illegal and could invalidate the signatures.[34][35]

Kramer also provided The Associated Press with audio clips he said show petitioners failed to read the official description of the petition's goal to potential signers, which is also required. Kramer said Nebraska United may legally challenge the validity of some signatures after they are submitted to the Secretary of State.[34]

Doug Tietz, executive director of the group, called the people gathering evidence and trying to convince people not to sign the petition "paid thugs."[34]

"Their strategy is one of desperation," Tietz said. It's the fourth quarter, you're down by 40 points, every play is going to be a Hail Mary." Tietz said all circulators are trained to follow the rules.[34]

Post-certification challenge

A lawsuit, Hall v. Nebraska Secretary of State, was filed on September 11, 2008 seeking to have the NCRI removed from the ballot. David Kramer, the campaign director for Nebraskans United, a group opposed to the measure, says the lawsuit would keep the initiative off the November 4th ballot. Hearings on the lawsuit in front of judge Karen Flowers began on October 6.[36][37]

The two plaintiffs in the lawsuit are University of Nebraska-Lincoln student Jeffrey Hall and Eva Sohl, a 2008 University of Nebraska-Lincoln graduate.[38]

Lancaster County District Court Judge Flowers was originally expected to rule on the case in October, but did not provide her opinion until January 2009, when she held in favor of the defendants. Unless the Nebraska Supreme Court agrees to hear an appeal, there will be no further legal action to attempt to undercut the NCRI.[39]

Flowers rejected the claim of the plaintiffs that there was so much fraud in the signature-gathering process that the initiative should be legally repudiated. She said that the right to the initiative process "should not be circumscribed by a narrow and strict interpretation of the statutes pertaining to its exercise." She also wrote, ""While one could argue that 'irregularities' occurred, the evidence presented by the plaintiffs does not permit me to find that any substantial number of signatures, let alone more than 24,000, should be discounted."

Flowers also wrote that "the facts do not support a finding that there was any pervasive pattern and practice of fraud, misinterpretation or deception."[1]

Background

Nebraska state senator Mark Christensen filed a bill in the Nebraska legislature that would have accomplished the same goal as the Nebraska Civil Rights Initiative. On February 26, 2008, Christensen withdrew the bill, saying that "he withdrew the measure because of pressure from other senators who threatened to torpedo his other bills."[40] Ward Connerly, addressing a crowd in Lincoln, Nebraska, on the day the bill was withdrawn, said that signature collection on the initiative petition was continuing.

In early May 2008, Marc Schniederjans, treasurer of the committee supporting the local initiative, said, "Here in Nebraska, we’re going to go full tilt. We’re gung-ho. We’re going to give it everything we’ve got." The petition drive deadline is July 4, 2008.[41]